VITAL SIGNSrnThe Necrosis ofrnLimited Governmentrnby Douglass H. BartleyrnThe words “general welfare” havernhad the greatest significance inrnmodern American life of any in the Constitution.rnOriginally regarded by its 18thcenturyrnFederalist creators as a restraintrnon federal power, the brake of generalrnwelfare has been transformed, retooledrnby the U.S. Supreme Court into a hugernturbine, a supercharger that drives today’srnimmense federal power grid.rnIn modern times, “general welfare”rnhas become the constitutional touchstonernfor vast portions of the federal taxing,rnspending, and regulator)’ apparatus.rn”Ceneral welfare” is the linchpin of federalrnexpansionism, the last straw almostrninvariably grasped by those whose federalrnsocial schemes cannot find constitutionalrnwarrant in any enumerated power.rnThat use of the Ceneral WelfarernClause is a development that woidd havernjolted James Madison, the Father of thernConstitution, and his close friendrnThomas Jefferson—had they envisionedrnthe judicial torture that modern juristsrnhave inflicted on the clause.rnhideed, the abuse of the clause wouldrnhave startled even the fervent archcentralistrnand expansionist AlexanderrnHamilton. Selling the proposed Constitutionrnto the ratifying states, Hamilton assuredrnreaders oi Federalist 83 that thernnew Constitution would grant no “generalrnlegislative authorify.” Hamilton’s representationrnalone disembowels the argumentsrnof the federal expansionists.rnHow did we get from a federal governmentrnhaving only delegated powers to arngovernment vested with “general legislativernauthority” to do everything notrnspecifically denied in the Constitution?rnhi large part, the transformation camernthrough the Supreme Court’s contortionrnof the words “general welfare.” Article I,rnsection 8, gives Congress power “to layrnand collect Taxes, Duhes, hnposts andrnExcises, to pay the Debts and provide forrnthe common Defence and general Welfarernof the United States. .. .”rnBefore ratification, the clause was thernsubject of controversy over the meaningrnof “provide for the common Defencernand general Welfare.” Opponents of ratificationrnargued (and modern revisionistsrnstill argue) that “general welfare” gavernCongress an unlimited power to tax andrnto spend for any purpose that couldrnsomehow be related to promoting thernnational welfare or the public good.rnMore specifically, the argument wasrnthat the words would create a generalrnpublic purpose power, complete of itself,rnindependent, separate, and distinct fromrnthe 17 other enumerated powers in thernfollowing clauses. The general powerrnwould be limited in scope only by thernprovision that federal taxing and spendingrnmust be for the common defense andrngeneral welfare, rather than insidar orrnprovincial defense or welfare.rnThat view originated with AlexanderrnHamilton in a statement in 1791, justrnthree years after his assurances to therncontrary in the Federalist. Reversingrnhimself, Hamilton said that the GeneralrnWelfare Clausernis as comprehensive as any thatrncould have been used, because itrnwas not fit that the constitutionalrnauthority of the Union to appropriaternits revenues shordd have beenrnrestricted within narrower limitsrnthan the general welfare.rnThe contrar}’ view, advanced by JamesrnMadison, was that “general welfare” conveyedrnno independent federal power, butrnwas “a sort of caption or general description,”rnas Madison put it, of the 17 enumeratedrnpowers listed in the followingrnclauses. The so-called “Hamiltonianrnview” idtimately received the imprimaturrnof the U.S. Supreme Court in 1936rnin United States v. Butler, a truly seminalrnand tragic case in our constitutional histor)’.rnButler was the Actium for limitedrnfederal power and the Waterloo for thernnotion of a binding Constitution.rnhi Butler, the immediate issue was thernconstitutionality of Franklin Roosevelt’srnAgricultural Adjustment Act of 1933,rnwhich imposed a federal tax on processorsrnof agricultural commodities. Thernproceeds were then distributed to farmersrnwho agreed to limit their productionrnof particular commodities. The government,rnurging the court to adopt thern”Hamiltonian view” of unlimited federalrnpower, argued that the tax was constitutionallyrnjustified as an exercise of its powerrnto legislate for the general welfare —rni.e., to help end the depression inrnagriculture by raising farm prices.rnThough the Supreme Court ridedrnagainst the government on separaterngrounds, it nonetheless frdly embracedrnthe Hamiltonian notions that: Congressrnhad power to tax for whatever purposesrncould qualify as advancing the generalrnwelfare; the Ceneral Welfare Clause wasrnan independent source of public-purposernspending power for Congress; andrn”public purposes” were unlimited inrnscope. “[T]lie power of Congress to authorizernexpenditures of public moneysrnfor public purposes is not limited by therndirect grants of legislative power found inrnthe Constitution,” declared the Court.rnButler crossed the constitutional Rubicon,rncutting the taxing power loose fromrnthe restraint of the other enumerated federalrnpowers. Until then, everyone hadrnthought that the taxing power could bernused only for funding measures that werernexercises of the specific, enumeratedrnpowers. Butler changed the constitutionalrnlandscape by holding that Congressrncould tax for any imenumerated purposernthat qualified as a public purpose. Thatrnopened the door for a Brobdingnagianrntaxing binge and ultimately the floodgatesrnfor the deluge of federal spendingrnthat inundates us today.rnThe only hope that Butler left alivernwas in one wheezing passage that intimatedrn”general welfare” might be subjectrnto some limitations. But a year later,rnthat faint hope was dashed in HelveringrnV. Davis, which upheld the establishmentrnof Social Securify as a proper usernof the general welfare power, hi Helvering,rnJustice Cardozo proved that judicialrngiants can have bad —even tragicallyrnbad —days, as he announced the Court’srnalmost total surrender to Congress on thernsubject of constitutional limits to the government’srntaxing power;rnThe line must still be drawn betweenrnone welfare and another,rnbetween particular and general.rnWhere this shall be placed cannotrnbe known through a formula in advancernof the event. There is a middlernground or certainly a penuni-rn40/CHRONICLESrnrnrn